Comment: Democrats can confirm more judges by ending arcane rule

By Jonathan Bernstein / Bloomberg Opinion

President Biden and Senate Democrats were aggressive about nominating and confirming federal judges in the first two years of Biden’s term. But since January, their momentum has been slowed by Republican obstructionism. Democrats have the power to break the logjam; and they should use it.

The arcane Senate custom that enables this particular obstruction is something called the “blue slip.” For more than a century, a senator has been allowed to block judicial nominees from his or her own state by declining to sign off on them (on, yes, a blue slip of paper). At this point, many of the remaining vacancies are for district judges in states with Republican senators. (A blue slip used to be required for both district and appellate court judges, but Republicans ended the tradition for appeals courts in 2018, and now they are using them to block district court picks.) As HuffPost’s Jennifer Bendery reports, Democrats turned in 110 blue slips during Donald Trump’s presidency, while so far in Biden’s, Republicans have submitted 17.

There currently are 62 district court vacancies and nine appellate vacancies on the federal bench. From a good-government perspective, this is harmful because those open positions inconvenience hundreds of thousands of Americans who have business before the federal courts. From a political perspective, it prevents the president from filling the judiciary with like-minded people, which is a legitimate goal of every administration.

Which gets to the blue-slip problem. Of the district court vacancies (almost 10 percent of all district court positions), 35 don’t even have a nominee. That’s mostly because Republican senators are refusing to accept anyone Biden might nominate.

Many senior Democrats are reluctant to break with Senate norms and eliminate the practice of giving home-state senators a de facto veto on their state’s district court positions. The convention is one of the ways in which the Senate has carved out influence for individual senators, which has always been one of the strengths of the smaller chamber.(Given the House’s larger size, individual members typically must specialize in some area and defer to others outside of their primary interest, whereas individual senators can be generalists, which allows them to represent their states across a broad spectrum of policy areas.)

The blue-slip custom also makes sense when low-level trial courts function as they traditionally have; that is, following precedent and applying federal law in their district. It’s part of the reason that the 5th Circuit Court of Appeals (which covers Texas, Louisiana and Mississippi) has been very conservative, while the 9th Circuit (covering California and other Western states) has been very liberal. In theory, that arrangement, and the institutional norms that make it work, seems reasonable.

In theory. Last month’s ruling on abortion medication by a district judge in Texas is a reminder that there are plenty of cases where Republican district judges (and some Democratic ones) ignore precedent and attempt to change policy for the entire nation. It doesn’t make a lot of sense to prioritize local standards in the nomination process if judges are pursuing national policy wins.

In the Senate, meanwhile, the blue-slip tradition isn’t really upholding the power of individual senators, or even assuring ideological diversity by forcing the president of one party to work with senators of the other to find mutually acceptable nominees. It is simply allowing the minority party a veto over many judicial nominations.

Even if that were acceptable, Democrats would rightly contend that Republicans would violate the norm if the roles were reversed. In fact, that’s precisely what happened when Democrats resisted Trump-nominated appeals court judges; Republicans simply abandoned the blue-slip tradition.

A norm that constrains only one party is not good for democracy. Ideally, Biden and Senate Democrats would reach a compromise with Republicans that would allow most nominees to get through. But there is no sign that Republicans are interested in cutting a deal.

That leaves essentially two choices for Biden and Senate Democrats. They can uphold tradition, which would leave almost six dozen judicial posts unfilled. Or they can desert tradition and confirm the judges they want by simple majority vote. Only one of these choices ensures that both the judiciary and the judicial nomination process work as intended.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.